I wrote earlier in the week about the most recent National Labor Relations Board Facebook firing case – a case I like to call the BMW hot dog case. (See our post Another Facebook Firing Found Lawful by the NLRB.) What I didn’t talk about in much detail in that post, though, was the portion of the case discussing whether various policies in the dealership’s employee handbook provisions violated the National Labor Relations Act.
So … lets talk about it. This portion of the case should give everyone pause – as well as motivate you to take a look at your employee handbook to see if you have any policies lurking there that might end up causing you trouble.
Here’s an example of one of the policies the ALJ found unlawful:
“Courtesy: Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.”
Does your employee handbook have similar language? Well, the ALJ in this case found this policy violated the NLRA because “employees could reasonably interpret it as curtailing their Section 7 rights.” The problem with this policy, according to the ALJ, was the word “disrespectful” because (under prior NLRB case law) “‘defining due respect, in the context of union activity, seems inherently subjective.’”
Here are two more policies the ALJ found unlawful:
“Unauthorized Interviews: As a means of protecting yourself and the Dealership, no unauthorized interviews are permitted to be conducted by individuals representing themselves as attorneys, peace officers, investigators, reporters, or someone who wants to ‘ask a few questions.’ If you are asked questions about the Dealership or its current or former employee, you are to refer that individual(s) to your supervisor. A decision will then be made as to whether that individual may conduct any interview and they will be introduced to you by your supervisor with a reason for the questioning. Similarly, if you are aware that an unauthorized interview is occurring at the Dealership, immediately notify the General Manager or the President.”
“Outside Inquiries Concerning Employees: All inquiries concerning employees from outside sources should be directed to the Human Resource Department. No information should be given regarding any employee by any other employee or manager to an outside source.”
The ALJ found that these two policies “clearly” violated the NLRA because they would prohibit employees from discussing their working conditions with union representatives, lawyers, or Board agents. The dealership apparently conceded this point and didn’t argue that the policies were lawful.
Now that I’ve scared you all and you’re all looking for copies of your handbooks, here’s an example of one of the dealership handbook policies the ALJ found acceptable:
“Bad Attitude: Employees should display a positive attitude toward their job. A bad attitude creates a difficult working environment and prevents the Dealership from providing quality service to our customers.”
According to the ALJ, this policy was not unlawful because it was directed at behavior toward customers, not the dealership. “BMW is a top of the line automobile with, I imagine, an appropriate sticker cost. A dealer in that situation, I believe, has the right to demand that its employees not display a bad attitude toward its customers.”
I should also add that the dealership anticipated the fact that these policies might end up causing them trouble, and it rescinded them shortly after the hot-dog-posting employee was terminated. The dealership’s after-the-fact actions, however, were not sufficient to satisfy the ALJ, and the dealership was required to post a notice to employees stating that the NLRB “has found that [the dealership] violated Federal labor law” and informing employees of their rights.
What do your handbook policies say? If you have similar policies, you may want to consult your legal counsel and update your employee handbook.